Citation Nr: 9832131
Decision Date: 10/29/98 Archive Date: 11/03/98
DOCKET NO. 97-11 298 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to benefits for a left foot disability under the
provisions of 38 U.S.C. § 1151.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Reichelderfer
INTRODUCTION
The veteran served on active duty from October 1952 to
February 1958.
This appeal arises from a rating decision of January 1995
from the New Orleans, Louisiana, Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he has a left foot
disability resulting from EMG [electromyogram] testing at a
Department of Veterans Affairs (VA) medical facility.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1998), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
veteran’s claim for benefits for a left foot disability under
the provisions of 38 U.S.C. § 1151.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claim has been developed.
2. The veteran does not have a left foot disability caused
by or related to the June 1992 VA EMG.
CONCLUSION OF LAW
The criteria for entitlement to benefits for disability of
the left foot caused by VA treatment are not met.
38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, a plausible claim has been presented. The
veteran has not indicated that additional relevant evidence
of probative value may be obtained which has not already been
sought and associated with his claims folder. Accordingly,
the Board finds that the duty to assist him, as mandated by
38 U.S.C.A. § 5107(a) (West 1991), has been satisfied.
On October 1, 1997, 38 U.S.C. § 1151 was amended. In
essence, this amendment required that to establish
entitlement to benefits under 38 U.S.C. § 1151, there must be
carelessness, negligence, lack of proper skill, error in
judgment, or a similar instance of fault on the part of the
VA in causing disability or death. The prior provisions of
38 U.S.C. § 1151 did not contain such a fault requirement.
However, since the appellant’s claim was received in 1992
prior to the effective date of the amendment, this decision
will be based on those provisions of 38 U.S.C. § 1151 that
were in effect prior to October 1997. VAOPGCPREC 40-97.
Where any veteran shall have suffered an injury, or an
aggravation of an injury, as the result of hospitalization,
medical or surgical treatment, ... and not the result of such
veteran’s own willful misconduct, and such injury or
aggravation results in additional disability..., disability
or death compensation ... shall be awarded in the same manner
as if such disability, aggravation, or death were service-
connected. 38 U.S.C.A. § 1151 (West 1991).
Where it is determined that there is additional disability
resulting from a disease or injury or an aggravation of an
existing disease or injury suffered as a result of training,
hospitalization, medical or surgical treatment, or
examination, compensation will be payable for such additional
disability. 38 C.F.R. § 3.358(a) (1997).
In determining that additional disability exists, the
veteran's physical condition immediately prior to the disease
or injury on which the claim is based will be compared with
the subsequent physical condition resulting from the disease
or injury, each body part involved being considered
separately. As applied to medical or surgical treatment, the
physical condition prior to the disease or injury will be the
condition which the specific medical or surgical treatment
was designed to relieve. Compensation will not be payable
under 38 U.S.C. 1151 for the continuance or natural progress
of disease or injuries for which the training, or
hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b)
(1997).
In determining whether such additional disability resulted
from a disease or an injury or an aggravation of an existing
disease or injury suffered as a result of training,
hospitalization, medical or surgical treatment, or
examination, it will be necessary to show that the additional
disability is actually the result of such disease or injury
or an aggravation of an existing disease or injury and not
merely coincidental therewith. The mere fact that
aggravation occurred will not suffice to make the additional
disability compensable in the absence of proof that it
resulted from disease or injury or an aggravation of an
existing disease or injury suffered as the result of
training, hospitalization, medical or surgical treatment, or
examination. Compensation is not payable for the necessary
consequences of medical or surgical treatment or examination
properly administered with the express or implied consent of
the veteran, or, in appropriate cases, the veteran's
representative. "Necessary consequences" are those which are
certain to result from, or were intended to result from, the
examination or medical or surgical treatment administered.
Consequences otherwise certain or intended to result from a
treatment will not be considered uncertain or unintended
solely because it had not been determined at the time consent
was given whether that treatment would in fact be
administered. 38 C.F.R. § 3.358(c) (1997).
The veteran testified that in June 1992, he underwent EMG
testing at a VA medical facility. He indicated that he
developed significant pain in his left foot when a needle
probe used for the test was stuck into his foot, and that he
had the sensation of something tearing. He indicated that he
did not have the pain prior to the testing and that he
continues to have the pain. The report of an October 1992 VA
podiatry examination notes an assessment of post puncture
pain in the left foot, fourth metatarsal. This examination
report thus indicates that the veteran’s complaints are
related to the EMG tests performed in June 1992.
A May 1996 VA consultation report notes an impression of
possible left lateral plantar neuritis. While this report
addressed the veteran’s history and complaints related to
pain after the June 1992 EMG, it does not specifically show
that the possible plantar neuritis was related to the June
1992 EMG. Additionally, the report notes only possible
plantar neuritis. Therefore, this report was equivocal as to
whether plantar neuritis was even present.
The report of the June 1992 EMG does not show that any
problems were encountered during the testing and notes an
impression of neuropathy of the bilateral lower extremities.
It does not show any nerve problems specific to the left
foot. The report of a September 1992 VA feet examination
notes a diagnosis of essentially negative examination of the
left foot with X-rays indicating bones were demineralized.
This examination report does not identify any disorder of the
left foot related to the June 1992 EMG. The report of a May
1996 VA peripheral nerves examination notes that the
examination was remarkable only for minimal weakness of all
the muscles of the left lower extremity. The examiner
indicated that it was doubtful the left foot and left lower
extremity condition was secondary to EMG tests. The report
of August 1996 VA EMG testing notes that studies involving
muscles of the left leg were within normal limits and
indicates an impression of bilateral superficial peroneal
sensory neuropathy. The report does not show any neurologic
disorder specific to the left foot or the June 1992 EMG.
These examination and test reports do not show a left foot
disorder related to the June 1992 EMG or specifically
indicate that the veteran’s complaints were not related to
the June 1992 EMG.
As noted, the October 1992 VA podiatry examination report
indicates that there was left foot pain related to the June
1992 EMG, but not a disorder of the foot, while the May 1996
consultation report was equivocal as whether a left foot
disorder (neuritis) was present. However, reports of the
September 1992 VA examination and the August 1996 EMG tests,
both of which were conducted to determine whether the veteran
had a left foot disorder related to the June 1992 EMG, did
not reveal the existence of such a disorder. More
importantly, the May 1996 VA peripheral nerves examination
report specifically indicates that it was doubtful that the
veteran’s complaints were related to the June 1992 EMG. This
report is considered persuasive since its specific purpose
was to determine whether the veteran had a disability related
to the June 1992 EMG and it is presumed to have been
conducted by an examiner who had expertise to make such a
determination. Therefore, the more probative medical
evidence indicates that the veteran’s complaints are not
related to the June 1992 VA EMG. This conclusion is
bolstered by an August 1996 opinion by a VA physician who
reviewed the claims file. This opinion indicates that there
was no etiological relationship between the pain of the
lateral dorsum of the left foot and the June 1992 EMG. The
veteran has testified that his foot and leg pain was related
to the June 1992 EMG, however, as a lay person, he is not
considered competent to render an opinion as to medical
diagnosis or causation. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). He has also provided materials retrieved
from the internet which he contends show that a puncture of a
nerve would cause his claimed disability. However, the
veteran’s interpretation of such information does not
constitute competent medical evidence. Sacks v. West, 11
Vet. App. 314 (1998).
Based on the above, the preponderance of the evidence
indicates that the veteran does not have a disorder of the
left foot related to the June 1992 VA EMG. Accordingly, the
preponderance of the evidence is against his claim for
benefits for a left foot disability under the provisions of
38 U.S.C. § 1151. 38 U.S.C.A. §§ 1151, 5107 (West 1991);
38 C.F.R. § 3.358 (1997).
ORDER
The claim for benefits for a left foot disability under the
provisions of 38 U.S.C. § 1151 is denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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